Petition — McLucas v. Connecticut

In the

Supreme Court of the United States

APRIL TERM, 1977

No. 77 230

Lonnie McLucas,

Petitioner

V. —

State of Connecticut,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT

OF THE STATE OF CONNECTICUT

— — — —

— — —

THEODORE I. KOSK OFF. ESQUIRE

1241 Main Street

Bridgeport, Connecticut 06604

Attorney for Petitioner

Of Counsel: MICHAEL P. KOSKOFF

LUCY V. KATZ

RICHARD A. FUCHS

BEVERLY J. HODGSON

INDEX

Page

STATEMENT OF JURISDICTION............... 1

QUESTIONS PRESENTED...............00005: 2

of eye BF A PPTeTTTTrTrerere 2

STATEMENT OF THE CAS ESunuin 3

REASONS FOR GRANTING WRIT.............. 7

I.A. THE FREEDOM OF INFORMATION ACT

II.

III.

IS NOT GROUNDS FOR QUASHING

SUBPOENAS ISSUED TO F.B.I. OFFI-

CIALS DURING A STATE CRIMINAL

TRIAL IN ORDER TO COMPEL EVI-

DENCE AS TO ELETRONIC SURVEIL-

LANCE OF THE DEFENDANT ........ 7

. A TRIAL COURT MAY NOT RULE ON

THE ADMISSIBILITY OF STATEMENTS

FLOWING FROM AN ALLEGED ILLE-

GAL ARREST, WITHOUT FIRST DETER-

MINING THE NATURE OF THE OFFI-

CIAL MISCONDUCT INVOLVED ....... 10

THE COURT'S REFUSAL TO CONSIDER

A MOTION TO CONFER IMMUNITY ON

DEFENSE WITNESSES AFTER CON-

FERRING IMMUNITY ON A PROSECU-

TION WITNESS DEPRIVED THE PETI-

TIONER OF DUE PROCESS OF LAW.... 12

THE COURT ERRED IN HOLDING THAT

PETITIONER LACKED STANDING TO

CHALLENGE USE OF EVIDENCE SEIZED

AT BLACK PANTHER PARTY CHAP-

TER HEADQUARTERS................ 15

APPENDIX

Page

DECISION OF THE SUPREME COURT OF THE

STATE OF CONNECTICUT .................. la

, ⁰ʒ 20a

DECISION ON MOTION TO REARGUE......... 21a

e 21a

CASES CITED

Barber v. Page, 390 U.S. 719 (1968 !) 15

Brady v. Maryland, 373 U.S. 83 (1963 ᷣꝶ ). 15

Brown v. Illinois, 422 U.S. 590 (19750) 10,11

Brown v. United States, 411 U.S. 223 (1973) 16, 17. 18

Cerda v. United States, 488 F. 2d 720 (9th Cir. 1973) 14

Earl v. United States, 361 F.2d 531 (D.C. Cir. 1966). ..... 13

Environmental Protection Agency v. Mink, 410 U.S.

— ͤ1V ˙¹.ꝛ̃ͥͤ . 8

Federal Aviation Administration v. Robertson, 422

DOA —— » ·0ð—ð—i¹Ümͥͤ K 7

Frankel v. SEC, 460 F. 2d 813 (2d Cir. 1972) 7

Gelbard v. United States, 408 U.S. 41(1972)............ 11

Gideon v. Wainwright, 372 U.S. 335 (1963). 15

Hawkes v. Internal Revenue Service, 467 F. 2d 787

/ A 0 55 7

In Re Kligo, 484 F.2d 1215 (4th Cir. 1979) 15

Jones v. United States, 362 U.S. 257 (1960)............. 16

eee

Page

Kastigar v. United States, 406 U.S. 441 (1972) .......... 15

Katz v. United States, 389 U.S. 347 (1967)........ 16, 17,18

Mancusi v. DeForte, 392 U.S. 364 (1968)......... 16, 17, 18

Mancusi v. Stubbs, 408 U.S. 204 (197 2ꝶ· e 15

Roviaro v. United States, 353 U.S. 53 (19577ꝶ 7777 9

United States v. Allstate Mortgage Corp., 507 F. 2d

e W. TK 14

United States v. Calandra, 414 U.S. 338 (1974). 11

United States v. Gaither, 539 F. 2d 753 (D.C. Cir. 1976). .. 13

United States v. Leonard, 494 F.2d 955 (D.C. Cir. 1974). .13

United States v. Morrison, 535 F.2d 223 (3rd Cir.

as enen ee 12. 13. 15

United States v. Nixon, 418 U.S. 683 (1974). 7

United States v. Smith, 436 F. 2d 787 (5th Cir. 1971) 14

Wardius v. State of Oregon, 412 U.S. 470 (1973) ........ 14

Washington v. Texas, 388 U.S. 14 (1967)............ 7,14

Williams v. Internal Revenue Service, 345 F. Supp.

951 D. Del. 1972) aff’d 479 F.2d 317 (3d Cir. 1973) ... 8

Wong Sun v. United States, 371 U.S. 471 (1963)......... 11

STATUTES CITED

. eee eee 2. 4. 7. 8, 10. 12

re. eee eee tees 2-3. 9. 11

e.. es sees ee ses 3. 9. 11

54-47 a Connecticut General Statutes.......... 3, 5, 14-15

iv

OTHER MATERIAL CITED

Westen, Compulsory Process, 73 Micu. L. Rev.

%% o 15

Final Report of the Select Committee to Study Govern-

mental Operations With Respect to Intelligence

Activities, United States Senate, 94th Cong.,

EEE LT 9

In the

Supreme Court of the United States

APRIL TERM. 1977

No.

Lonnie McLucas,

Petitioner

V.

State of Connecticut,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

The Petitioner, Lonnie McLucas, respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the Supreme Court of the State of Connec-

ticut entered in this proceeding on March 15, 1977. The

Petitioner’s Motion to Reargue was denied on April 5,

1977.

OPINION BELOW

The opinion of the Supreme Court of the State of Con-

necticut is reported at 38 Conn. L.J. No. 37 and is reprinted

in the Appendix hereto.

STATEMENT OF JURISDICTION

The Petitioner was convicted after a jury trial in the

Superior Court of the State of Connecticut of conspiracy

2

to commit murder and was acquitted of three other

charges.

The conviction was affirmed by the Supreme Court of

the State of Connecticut on March 15, 1977. A Motion to

Reargue was denied on April 5, 1977, and this petition is

filed within 90 days of that date. This Court's jurisdiction

is invoked pursuant to 28 U.S.C. Sec. 1257 (3).

QUESTIONS PRESENTED

1. a) Is the Freedom of Information Act, Title 5 U.S.C.

Sec. 552 (b) (7), grounds for quashing subpoenas issued to

F. B. I. officials during the course of a state criminal trial

in order to compel evidence regarding electronic surveil-

lance of the defendant?

b) When there is a claim of an illegal arrest, may a

court determine the admissibility of statements flowing

from that arrest without determining the nature of the

official misconduct constituting the illegality?

2. Did the refusal of the trial court in a conspiracy trial

to consider a motion to grant immunity to defense wit-

nesses after granting such immunity to a prosecution

witness deprive the defendant of due process of law?

3. Does an officer of a political organization whose

office and headquarters are searched have standing to

contest the search and subsequent seizures, even though

he is not present at the time the search is conducted?

STATUTES INVOLVED

As to question 1, the statutes involved are the Fourth,

Fifth and Sixth Amendments to the Constitution of the

United States, Title 5 U.S.C. Sec. 552 (b) (7), and Titles 18

3

U.S.C. Sees. 2515 and 2518. As to question 2, the statutes

involved are Sec. 54-47a, Connecticut General Statutes,

and the Sixth and Fourteenth Amendments to the Con-

stitution of the United States. As to question 3, the con-

stitutional provisions involved are the Fourth and Four-

teenth Amendments to the Constitution of the United

States. These constitutional provisions and statutes are

set forth in pertinent part in the appendix hereto.

STATEMENT OF THE CASE

The Petitioner, Lonnie McLucas, was tried on charges

arising from events culminating in the death of Alex

Rackley in New Haven, Connecticut. The Petitioner and

several others had established a branch of the Black Pan-

ther Party in New Haven with Party headquarters in a

house at 365 Orchard Street, rented by Warren Kimbro,

one of the Party members. 4

On or about May 17, 1969, George Sams arrived at 365

Orchard Street with Landon Williams and Alex Rackley.

Sams claimed he had been sent by the National Black

Panther Party to supervise the New Haven Chapter. The

following day Sams began to inflict “discipline” on Rack-

ley for alleged misdeeds. Sams, who always wore and fre-

quently brandished a gun, intimidated others in the house

(T. 1842) and ordered occupants of the house to interro-

gate and physically punish Rackley. Telling the Peti-

tioner that he was going to let Rackley go (T. 1863), Sams

ordered the Petitioner, accompanied by Kimbro, to drive

to a wooded spot, where Sams ordered Kimbro to shoot

Rackley. (T.F.V. R. 187). Kimbro ordered Rackley into

the woods and, in the absence of the others, shot him

through the head. Kimbro returned to the car. Sams then

ordered the Petitioner to fire another shot at Rackley's

body. (Tr. F.V. 187-9, T. 1867-9).

I. The Petitioner was arrested on a federal fugitive

4

warrant by agents of the Federal Bureau of Investigation

in Salt Lake City, Utah. Petitioner on February 16, 1970,

and May 5, 1970, moved to suppress statements made to

federal and Connecticut authorities susequent to the

arrest on the ground that they were tainted by the ille-

gality of the arrest and were therefore inadmissible (Tr.

398). The trial court denied the motions with leave to

renew them at the time of trial. When the prosecution

sought to introduce the statements at trial, Petitioner

attempted to prove the use of illegal electronic surveil-

lance and issued two subpoenas directed to agents of the

Federa! Bureau of Investigation seeking testimony and

documents concerning illegal electronic surveillance.

One of the subpoenas sought to elicit evidence concern-

ing the illegality of the Petitioner's arrest: the second

sought to elicit other material evidence derived as a result

of unlawful electronic eavesdropping on the Black Panther

Party headquarters in New Haven. (Trial F. 34). The

United States Attorney moved to quash the subpoenas

on the ground that the Freedom of Information Act, 5

U.S.C. Sec. 552 (b) (7), barred the use by the Petitioner of

compulsory process to secure the information sought.

The trial court granted the motion to quash, thereby

refusing to hear evidence regarding the illegality of the

arrest. (T. 921). The court then found that since Miranda

warnings were given, the statements were voluntary.

The court admitted the statements into evidence without

consideration of the illegality of the arrest. (T. 926).

The Connecticut Supreme Court upheld the quashing of

the subpoenas on the basis of Sec. 552 (b) (7) and approved

the trial court's procedure in admitting the statements.

II. Twelve other members of the New Haven Black

Panther Chapter and National Chairman Bobby Seale

were charged with related crimes along with the Peti-

tioner. Because of the order in which the various pro-

ceedings were arranged by the prosecutor, the Petitioner

5

was unable to present the testimony of many co-defend-

ants familiar with the events in question.

Warren Kimbro and George Sams pleaded guilty to

second degree murder before the Petitioner's trial and

were major prosecution witnesses. (They have since been

pardoned by the State.) Loretta Luckes pleaded guilty to

conspiracy charges and testified against the Petitioner.

Maude Frances and Aletta Wilson were treated as juven-

iles and released after six months’ pre-trial detention.

Landon Williams and Rory Hithe were not extradited

back to Connecticut until after the Petitioner's trial. The

prosecutor chose to sever the Defendant’s case and try

him first. At the time when Petitioner's trial began, the

remaining Defendants, Ericka Huggins, Margaret Hudgins,

Rose Marie Smith, George Edwards and Bobby Seale,

were all awaiting separate trials. When called as defense

witnesses, Huggins, Smith and Edwards invoked their

Fifth Amendment right not to testify because of the

pendency of their own trials. (Trial F. XVII (a), R. 353;

Trial F XVII (d), R. 354; Trial F. XVII (e), R. 355-6; Trial

F. XVII (2) (f), R. 356.) The Petitioner’s requests that each

witness be granted immunity were denied. (Trial F. 142-

146.) Alleged accomplice Frances Carter had already

been called as a witness by the prosecutor, invoked her

Fifth Amendment privilege and been granted immunity

pursuant to Sec. 54-47a Connecticut General Statutes

(Trial F. 133).

All of the defense witnesses to whom immunity was

denied were eyewitnesses to some or all of the events on

which the charges against the Petitioner were based.

The only persons who did waive their Fifth Amendment

rights were Seale, who was not an eyewitness, and Hudgins,

who did not witness all of the events.

The Supreme Court of the State of Connecticut upheld

the trial court's rulings.

6

III. Sometime prior to Petitioner’s arrest, the Black

Panther Party Headquarters in New Haven was entered

and searched by New Haven Police acting without a war-

rant. (T. 722).

As a resuit of the search, a tape recorder, tape record-

ings and a .45 caliber revolver were seized by the police.

The Defendant did not own any of these items, nor was

possession of them an element of any offense with which

he was charged.

The Defendant was one of four members of the Central

Staff of the Connecticut Black Panther Party. The Cen-

tral Staff controlled the party for the State and set policy

for it. (T. 715).

Any records of the party and its treasury were kept in

the headquarters. (T. 711). The treasury was frequently

moved, and was sometimes kept in Mr. Kimbro's bed-

room, the room from which the items in question were

seized. (T. 715).

The Defendant came and went at will to and from Party |

Headquarters. (T. 712). Although he evidently did not

live there, he did at times sleep there. He used the tele-

phone at the Party Headquarters to transact party busi-

ness.

Prior to the trial, on February 16, 1970, Defendant

moved to suppress the use as evidence of the tape re-

corder, tape recordings and un. The motion was denied

a prejudice on May 5, 1970 and was renewed at

trial.

After a hearing on the motion, the trial judge held that

Defendant did not have standing to contest the search

and seizure. (T. 716-22).

7

The Supreme Court of the State of Connecticut affirmed.

REASONS FOR GRANTING THIS WRIT

I

A. THE FREEDOM OF INFORMATION ACT IS NOT

GROUNDS FOR QUASHING SUBPOENAS IS-

SUED TO F.B.I. OFFICIALS DURING A STATE

CRIMINAL TRIAL IN ORDER TO COMPEL EVI-

DENCE AS TO ELECTRONIC SURVEILLANUE

OF THE DEFENDANT.

In seeking to enforce his subpoenas against agents of

the Federal Bureau of Investigation, Petitioner was as-

serting his right “to have compulsory process for obtain-

ing witnesses in his favor.” U.S. Const., Amend. VI, By

subjugating that right to the provisions of 5 U.S.C. §552,

the Freedom of Information Act, the Connecticut Su-

preme Court ignores both basic Constitutional doctrine

and pricr decisions of this Court upholding the vital nature

of the right to compulsory process. This Court has con-

sistently protected the right of a criminal defendant to

compel the attendance of witnesses. United States v. Nixon,

418 U.S. 683 (1974); Washington v. Texas, 388 U.S. 14, 19

(1967).

The sole ground asserted by the F.B.I. for quashing

the subpoenas was that 5 U.S.C. §552 (b) (7) shielded the

government from disclosing the information sought, and

the trial court granted the motion to quash on that basis.

The Freedom of Information Act, 5 U.S.C. §552 et seq.,

creates a judicially enforceable public right to disclosure

of information in the control of federal officials, Federal

1 Administration v. Robertson, 422 U.S. 255 (1975);

Hl. Internal Revenue Service, 467 F.2d 787 (6th Cir.

19 ‘ranke’ ». SEC, 460 F. 2d 813, 816 (2d Cir. 1972), cert.

— —

denied, 409 U.S. 889 (1972). Rights of parties in civil or

criminal litigation which already exist are unaltered by

the Act, Environmental Protection Agency v. Mink, 410

U.S. 73, 85-6 (1973). The rights of persons subject to crim-

inal process or investigation are to be determined with-

out reference thereto. Williams v. Internal Revenue Service,

345 F. Supp. 591 (D. Del. 1972), aff’d, 479 F.2d 317 (3d Cir.

1973), cert. denied, 414 U.S. 1024.

Section 552 (b) (7), and the other exemptions to §552,

as well as the exceptions to those exemptions, are not

matters for a court to consider unless a party is proceed-

ing under the Act’s affirmative right to information. The

decision below, if allowed to stand, creates a dangerous

precedent for prosecutors’ use of the Freedom of Infor-

mation Act to deny a defendant's rights to discover infor-

mation and to produce evidence material to his defense.

At the time the subpoenas were issued, Petitioner

had a reasonable basis for believing that illegal wiretap-

ping had led to his arrest, since he was apprehended at a

Western Union office in Salt Lake City, Utah, following

telephone conversations with persons in the J ersey City

Black Panther headquarters. Petitioner had been driving

across the country and apart from these telephone con-

versations, no one could have learned of his presence

either in Salt Lake City or in that Western Union office.

Earlier in the trial, when the arresting F. B. I. agent testi-

fied as to his post-arrest conversations with Petitioner,

counsel moved for disclosure by the prosecution of any

federal electronic surveillance of the New Jersey Black

Panther office. This motion was summarily denied by the

Court. (Tr. 398). Petitioner's only remaining recourse

was to subpoena F.B.I. representatives back to Court to

request any Bureau records of such surveillance.

The first subpoena requested information regarding

the Jersey City headquarters. Had unlawful electronic

9

surveillance of that office been revealed, Petitioner's ar-

rest could be shown to be illegal and any statements which

flowed from that arrest should have been suppressed

under the Fourth Amendment and under 18 U.S.C. §2515

and §2518 (9) and (10). The second subpoena concerned

surveillance at 365 Orchard Street, New Haven. There

was evidence of numerous phone calls to and from that

address during the days prior and subsequent to the death

of Alex Rackley. The substance of those conversations

may have contained material evidence either corrobo-

rating Petitioner's testimony or showing F.B.I. entrap-

ment or other conduct so violative of due process as to

require dismissal of all charges. Roviaro v. United States,

353 U.S. 53 (1957)*. Petitioner was nonetheless repeatedly

It is now known that at the time of Petitioner's arrest wire taps

were used by the F.B.I. nationally against the Black Panther Party,

and particularly its New Haven office. Department of Justice Mem-

oranda from W. R. Wannall to C. D. Brenna, March 25, 1971, and

March 29, 1971. And see “Intelligence Activities and the Rights of

Americans,” Final Report of the Select Committee to Study Gov-

ernmental Operations with Respect to Intelligence Activities, United

States Senate, 94th Cong., 2d Sess., Book II, p. 139, and Book III,

p. 319. Further, during this period the Black Panther Party was

the primary focus” of the F. B. I. s convert action program (COIN-

TELPRO) against “Black Nationalist Hate Groups,” which included

tactics that “were clearly intended to foster violence, and many

others that could reasonably have been expected to foster violence,”

Id., Book III at 187-8. These tactics included “fingering” persons as

informants, to ostracize them from the group and foment dissension.

Id., Book III. p. 47. In one reported incident, the F.B.I., having

learned the whereabouts of a fugitive through electronic surveil-

lance of the Black Panther Party, sent an anonymous letter accus-

sing a member of providing information against him: “How come

the F. B. I. pig facist knew where to bust Lonnie and Minnie way out

where they were.” /d., Book III, p. 47. The letter may demonstrate

that Petitioner was a victim of this or similar surveillance.

The trial of this case took place at a time when the F. B. I. s COIN-

TELPRO was maintained in top secrecy, /d., Book III at 64, and in-

volved direct interference with the judiciai process.

10

denied an opportunity even to ask the preliminary ques-

tion: was there federal electronic surveillance concerning

the case?

B. A TRIAL COURT MAY NOT RULE ON THE AD.

MISSIBILITY OF STATEMENTS FLOWING FROM

AN ALLEGED ILLEGAL ARREST, WITHOUT

FIRST DETERMINING THE NATURE OF THE

OFFICIAL MISCONDUCT INVOLVED.

The Connecticut Supreme Court misapplied this

Court's standards as to suppression of statements flow-

ing from an unlawful arrest under Brown v. Illinois, 422

U.S. 590 (1975) when it ruled that Petitioner's statements

were voluntary and admissible regardless of any prior

illegality. Under Brown, the giving of Miranda warnings

will not purge from a subsequent confession the taint of

an arrest made in violation of the Fourth Amendment.

Instead, the courts must consider that:

The temporal proximity of the arrest and the con-

fession, the presence of intervening circumstances,

...and, particularly the purpose and flagrancy of the

official misconduct are all relevant... And the bur-

den of showing admissibility rests, of course, on the

prosecution. (emphasis added)

422 U.S. at 603-604. The Connecticut Court relies only on

the fact that Petitioner had been given Miranda warnings

The bureau's attempts to interfere with judicial processes

affecting targets are particularly disturbing because they

violate a fundamental principle of our system of government.

Justice is supposed to be blind. Nevertheless, when a target

appeared before a judge, a jury, or a probation board, he some-

times carried an unknown burden; the Bureau had gotten

there first.

Id.. Book III at 58. It was in this context that Petitioner's subpoenas

of F. B. I. agents were quashed, solely on the basis of 5 U.S.C. Sec.

552 (b) (7).

11

prior to making any statements, and had validly waived

his Fifth Amendment rights.* On the question of official

misconduct the Court found that “Above all, there was

no suggestion whatsoever in this case that ‘[t}he illegal

ity. ..had a quality of purposefulness’” (Appendix, p. 13a).

Yet the trial court had deliberately prevented Peti-

tioner from producing any evidence as to the official mis-

conduct involved. The state never assumed the burden of

demonstrating the legality of Petitioner's arrest. The

prosecution simply relied on the subsequent Miranda

warnings. Under Brown, the Court could not dispose of

the suppression motion without evidence as to the nature

of the original Fourth Amendment violation. Resolution

of whether the later warnings vitiated the initial illegal-

ity depends in part upon the specific official misconduct.

Yet the trial court deliberately foreclosed Petitioner

from producing any evidence as to that misconduct; neith-

er did the Court require the state to produce evidence as

to the arrest itself.

Moreover, if electronic surveillance had led to Peti-

tioner's arrest, and if that surveillance were unlawful

under 18 U.S.C. §2518, the federal wiretap statute, then

“evidence derived therefrom” had to be excluded, 18

U.S.C. §2515 and §2518 (9) and (10), regardless of whether

the taint had been removed under Wong Sun v. United

States, 371 U.S. 471 (1963). Where electronic wiretapping

is concerned, these statutes require suppression, even

though the same evidence may be admissible under tradi-

tional Fourth Amendment standards. Gelbard v. United

States, 408 U.S. 41 (1972); United States v. Calandra, 414

U.S. 338, 355, n.11 (1974).

*Petitioner had given a series of statements to F.B.I. and New

Haven police officers, beginning shortly after his arrest. The ille-

gality of that arrest would taint every statement, as each flowed

directly from the same unlawful police conduct.

12

In conclusion, the quashing of the subpoenas deprived

Petitioner of the opportunity to present evidence with

regard to two crucial areas of the case. First, the quash-

ing of the subpoena addressed to the illegal wiretapping

in New Jersey prevented Petitioner from producing evi-

dence relating to the suppression of the statements given

by him. Second, the quashing of the subpoenas as to elec-

tronic surveillance at 365 Orchard Street prevented Peti-

tioner from producing material and potentially exculpa-

tory evidence concerning the merits of the charges against

him. The Court should decide this question to prevent

the future misuse of the Freedom of Information Act to

shield in secrecy information which a criminal defendant

is guaranteed under the Sixth Amendment.

II

THE COURT’S REFUSAL TO CONSIDER A Mo-

TION TO CONFER IMMUNITY ON DEFENSE

WITNESSES AFTER CONFERRING IMMUNITY

ON A PROSECUTION WITNESS DEPRIVED THE

PETITIONER OF DUE PROCESS OF LAW.

This Court should grant certiorari to decide this ques-

tion because there is substantial conflict among Courts of

Appeals concerning whether denial of immunity to de-

fense witnesses who invoke the Fifth Amendment consti-

tutes a denial of due process of law. The Court of Appeals

for the Third Circuit held in United States v. Morrison, 535

F. 2d 223, 229 (3rd Cir. 1976):

There are circumstances under which it appears

due process may demand that the Government re-

quest use immunity for a defendant's witness.

The Court cited prosecutorial misconduct in threat-

ening prosecution of a witness as one such circumstance.

LO

13

The Morrison court, at 229, ordered a new trial and

directed that if the witness in question invoked her Fifth

Amendment right not to testify, a judgment of acquittal

should enter unless the Government requested use im-

munity for her testimony.

Similarly, the Court of Appeals for the District of

Columbia has recognized that special circumstances such

as use by the prosecution of grants of immunity for its

ov 1 witnesses entitle defendants to grants of immunity

ios defense witnesses. In Earl v. United States, 361 F.2d

531 (D.C. Cir. 1966) (Burger, J.) cert. denied, 388 U.S. 921

(1967) the court said:

We might have quite different, and more difficult

problems had the Government in this case secured

testimony from one eyewitness by granting him im-

munity while declining to seek an immunity grant

for [Defendant's witness] to free him from possible

incrimination to testify for Earl. That situation

would vividly dramatize an argument on behalf of

Earl that the statute as applied denies him due proc-

ess. Arguments could be advanced that in the par-

ticular case the Government could not use the im-

munity statute for its advantage unless Congress

made the same mechanism available to the accused.

Id. at 534 n. I. (emphasis in original).

Again, where the prosecution introduced out-of-court-

statements of a co-defendant who could not be called as

an involuntary witness, the Court of Appeals for the Dis-

trict of Columbia saw an obligation for the prosecution to

seek use immunity for the alleged declarant in order to

permit the Defendant to present to the jury rebuttal in

the form of cross-examination. United States v. Leonard,

494 F. 2d 955, 985, n.79 (D.C. Cir. 1974). In United States v.

Gaither, 539 F.2d 753, 754 (D.C. Cir. 1976), Chief Judge

Bazelon pointed out that had the record clearly indicated

that the Defendant had sought immunity for a witness,

14

failure to grant immunity may have seriously affected

the fairness of the judicial proceedings.

The Courts of Appeals of other circuits have denied

immunity for defense witnesses in cases in which no spe-

cial circumstances have been raised and have confined

their analysis to the authority of courts to extend the

federal immunity statute to defendants rather than con-

sidering the due process rights of defendants to such ex-

tension. See United States v. Allstate Mortgage Corp., 507

F.2d 492 (7th Cir. 1974), cert. denied, 421 U.S. 999 (1975);

United States v. Smith, 436 F.2d 787 (5th Cir. 1971), cert.

denied, 402 U.S. 976 (1971); Cerda v. United States, 488

F. 2d 720 (9th Cir. 1973).

The rights of a criminal defendant to present evidence

on his own behalf and to employ compulsory process are

fundamental constitutional rights applicable to the

states. Washington v. Texas, 388 U.S. 14 (1967).

Procedures for granting immunity to witnesses who

invoke Fifth Amendment rights constitute a type of com-

pulsory process within the meaning of the Sixth Amend-

ment and therefore should be available to defendants.

This Court held in Wardius v. State of Oregon, 412 U.S.

470 (1973) that the constitutional validity of state crimi-

nal procedures depends on whether the procedures are

equally available to the prosecution and the accused, and

on whether unfair advantage to the prosecution is created.

Since entitlement to compulsory process is a right guar-

anteed to criminal defendants rather than to the Gov-

ernment, defendants’ access to all types of compulsory

process must be at least equal to that of the Government.

The trial court’s refusal to grant immunity to defense

witnesses after granting it to a prosecution witness ‘

denial of due process of law.

The Connecticut immunity statute, Sec. 54-47a Con-

15

necticut General Statutes, does not clearly authorize

grants of immunity for defense witnesses. However, this

Court has held that, in some circumstances, criminal de-

fendants are entitled to affirmative aid to insure that

their ability to present a defense is not hampered by the

Government's superior resources and access to witnesses.

Gideon v. Wainwright, 372 U.S. 335 (1963); Brady v. Mary-

land, 373 U.S. 83 (1963); Barber v. Page, 390 U.S. 719 (1968);

Mancusi v. Stubbs, 408 U.S. 204 (1972). See also, United

States v. Morrison, supra.

Equal access to grants of testimonial immunity need

not entail the “immunity bath” feared in In Re Kligo, 484

F.2d 1215, 1222 (4th Cir. 1973), as use immunity and not

transactional immunity can be made available as a suffi-

cient safeguard of the rights of witnesses. Kastigar v. United

States, 406 U.S. 441 (1972). Since granting of use immunity

has been held to leave witnesses and prosecutor in the

same position as if the witness had claimed his Fifth

Amendment privilege, Id., to deny the same device to

Defendants is to apply a different standard and to deprive

the Defendant of his due process right to present exculpa-

tory evidence and to employ compulsory process. The

fact that extra prosecutorial effort may be required to

show at a subsequent trial of the witness that no use has

been made of the testimony is not recognized as a valid

objection to grants of immunity by the Government, and

therefore, no such considerations can be the basis for

denying use immunity for defense witnesses. Cf. Westen,

Compulsory Process, 73 Micu. L. Rev. 71, 166-170 (1974).

III

THE COURT ERRED IN HOLDING THAT PETI-

TIONER LACKED STANDING TO CHALLENGE

USE OF EVIDENCE SEIZED AT BLACK PAN-

THER PARTY CHAPTER HEADQUARTERS.

The Supreme Court of the State of Connecticut in

16

this case has decided an important constitutional ques-

tion in a manner which conflicts with the decisions of this

court in Jones v. United States, 362 U.S. 257 (1960); Man-

cusi v. DeForte, 392 U.S. 364 (1968); and Katz v. United

States, 389 U.S. 347 (1967). The result of the holding will

be to remove Fourth Amendment protections from a sub-

stantial number of political groups and other organiza-

tions.

The opinion of the Supreme Court of Connecticut

turns on the following issues: the fact that the Petitioner

was not present at the time of the search; the fact that

the premises were leased by an individual (Warren Kim-

bro) rather than by the Black Panther Party; and the fact

that Petitioner may not have spent a great deal of time

on the premises. The Court below completely ignored

both the character of the premises as the headquarters

of a political party and the test set forth in Katt and re-

affirmed in Mancusi:

.. .[CJapacity to claim the protection of the [Fourth]

Amendment depends not upon a property right in

the invaded place but upon whether the area was

one in which there was a reasonable expectation of

— from governmental intrusion. 392 U.S. at

The Connecticut court relied instead on Brown v.

United States, 411 U.S. 223 (1973), where this Court said:

There is no standing to contest a search and seizure

where. the defendants: (a) were not on the prem-

ises at the time of the contested search and seizure;

(b) alleged no proprietary or possessory interest in

the premises; and (c) were not charged with an of-

fense that includes, as an essential element of the

offense charged, possession of the seized evidence

at the time of the contested search and seizure.

Id. at 229.

17

Brown, however, was a case which was specifically

limited to its facts. Jd. This Court stated there that peti-

tioners “failed to allege any legitimate interest of any

kind in the premises searched... Id. at 229.

In marked contrast to Brown, the Petitioner here

had an interest in the premises of constitutional dimen-

sions. The premises were the center for the expression

by the Petitioner of political views protected by the First

Amendment to the Constitution of the United States.

The Petitioner was a ranking officer in a political organi-

zation which used the premises in question as its head-

quarters. The trial testimony is undisputed that records

and monies of the Black Panther Party were stored at

365 Orchard Street and that policy decisions of the group

were made there.

There is no question that the search of 365 Orchard

Street was directed against the Black Panther Party.

The Fourth Amendment, of course, “protects people, not

places.” Katz, supra, 389 U.S. at 351. In this case, the pro-

tected people included officers of the New Haven Black

Panther Party Chapter who used the premises as their

headquarters.

The relationship of an organizational official to the

organization's offices was examined by this Court in Man-

cusi v. DeForte, 392 U.S. 364 (1968). Petitioner in that case

was a union officer who was present in an office shared

by other union officials when union papers were seized.

The papers did not belong to petitioner. The Court stated

that the fact that the office was shared rather than a pri-

vate office did not affect petitioner's standing to assert

Fourth Amendment rights. Contrary to the interpreta-

tion of the Supreme Court of Connecticut, the case also

did not depend on the presence of DeForte at the illegal

seizure, but rather depended on his expectation of pri-

vacy as a union official in a union office:

18

DeForte still could have reasonably expected that

only those persons and their persona! or business

guests would enter the office, and that records would

not be touched except with their permission or that

of union higher-ups. /d. at 369.

Petitioner in this case clearly falls within the Mancusi

rationale. He was a party official; he spent time at the

office; the premises used were the living quarters of an-

other party official. Petitioner had a reasonable expecta-

tion that the premises would be free from governmental

intrusion. Similarly, as a ranking official of the party, he

had a sufficient interest in party headquarters to enforce

this expectation. Brown v. United States, supra, does no-

thing to abrogate this right.

The items introduced into evidence included a tape

recording prepared by Petitioner’s organization. The

rationale of the Connecticut court for admitting these

items would be as applicable to membership lists, cor-

porate papers, and minutes of meetings of the organiza-

tion as it was to the items which were introduced in evi-

dence in this case.

As an officer of a political group, Petitioner here had

standing to assert the right of his organization to be free

from governmental intrusion. To hold that such an offi-

cer cannot assert this right will severely decrease the

scope and purpose of the Fourth Amendment as deline-

ated by the decisions of this Court in cases such as Man-

cusi and Katz.

Additionally, the reliance of the Connecticut court on

proprietary matters such as who held the lease on the

premises and who slept there is misplaced. Dissident

political organizations, for financial and other reasons,

often do not own or lease property in the name of the or-

ganization. The premises were treated as party head-

19

quarters by the New Haven police as well as the Peti-

tioner in this case. This Court should grant certiorari on

this issue to clarify what nexus must exist between an

individual and a political organization in order to confer

standing on that individual to assert Fourth Amendment

rights in a Court of Law.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari to the Supreme Court of the State of Connec-

ticut should be granted.

Respectfully submitted,

THEODORE I. KOSKOFF, Esquire

Koskoff, Koskoff, Rutkin

& Bieder, P.C.

1241 Main Street

Bridgeport, Connecticut 06604

Of Counsel:

Michael P. Koskoff

Lucy V. Katz

Beverly J. Hodgson

Richard A. Fuchs

CERTIFICATE OF SERVICE

This is to certify that three (3) copies of the foregoing

were sent, postage prepaid, on this first day of July, 1977,

to Attorney Arnold Markle, State’s Attorney, 235 Church

Street, New Haven, Connecticut.

THEODORE I. KOSKOFF

la

APPENDIX

OPINION BELOW

SUPREME COURT

OF THE STATE OF CONNECTICUT

December Term 1976

STATE OF CONNECTICUT v. LONNIE McLUCAS

HOUSE, C. J., LOISELLE, BOGDANSKI,

LONGO AND BARBER, JS.

Argued December 10, 1976 — decision released March 15, 1977

BARBER, J. The defendant was charged with the fol-

lowing violations of the General Statutes (Rev. to 1968):

by indictment with the crime of kidnapping resulting in

death in violation of General Statutes §53-27, and by in-

formation with the crimes of conspiracy to commit kid-

napping in violation of §53-27, conspiracy to commit mur-

der in violation of §54-197, and with the crime of binding

with intent to commit crime in violation of §53-19. A jury

found the defendant guilty of conspiracy to commit the

crime of murder and not guilty of the other crimes. The

defendant has appealed from the judgment rendered,

assigning as error a number of rulings by the trial court.

A brief statement of some of the background facts, not

disputed by the parties, will put the issues in proper per-

spective. The charges against the defendant, Lonnie

McLucas, all arose out of events culminating in the death

of Alex Rackley. The defendant and others had estab-

—

2a

lished a branch of the Black Panther Party in New Haven.

The conspiracy to murder Rackley was alleged to have

developed during the period of May 18 through May 21,

1969, and was alleged to have included several members

and affiliates of the Black Panther Party in New Haven.

Those charged included the national party chairman,

Bobby Seale, who was indicted for participation in the

murder and was alleged to have given the order that

Rackley be killed. The state contended that Rackley was

tortured and killed because he was suspected of being a

police informer. A number of those charged with being

involved in the murder entered guilty pleas. Two pleaded

guilty to second degree murder, two pleaded guilty to

conspiracy to commit murder, three pleaded guilty to

aggravated assault, and one pleaded guilty to conspiracy

to commit kidnapping. All charges against Bobby Seale

were dismissed after a lengthy trial ended in a hung jury.

The defendant was tried alone after being denied a joint

trial with several other defendants. It is undisputed that

Rackley was “disciplined” by torture and then was bound

and driven to a swamp in Middlefield. During the trial,

the defendant described his participation in the events

and admitted that after Rackley had been taken to a

wooded area and had been shot once, he, McLucas, was

given the gun and fired a second shot. The defendant's

defense for his actions was predicated on the claim of an

overwhelming fear of, and coercion by, another alleged

participant, George Sams, whom the defendant sought to

portray as a madman. The state contended that Rackley

was tortured and killed not because of pressure from one

individual, Sams, but because he was suspected of being

a police informer within the Black Panther Party.

The court made a finding on each of the rulings involved

in this appeal, which finding includes such facts as were

considered incidental to each of the respective rulings.

3a

Prior to the trial, the defendant moved to suppress as

evidence a tape recorder, tape recordings and a .45 caliber

revolver which had been seized from an apartment at

365 Orchard Street in New Haven. The motion was de-

nied without prejudice to the defendant’s right to renew

it at the time of trial. There was subsequently a full hear-

ing on the motion at the time of trial. The defendant

claimed that he had standing to challenge the search on

the basis of his membership on the central staff of the

Black Panther Party. The court concluded that the de-

fendant did not have standing to challenge the search

and seizure in that he was not on the premises at the time

of the seizure and had no possessory interest in either

the premises or the articles seized. “[T]here is no stand-

ing to contest a search and seizure where the defend-

ants: (a) were not on the premises at the time of the con-

tested search and seizure; (b) alleged no proprietary or

possessory interest in the premises; and (c) were not

charged with an offense that includes, as an essential ele-

ment of the offense charged, possession of the seized evi-

dence at the time of the contested search and seizure.”

Brown v. United States, 411 U.S. 223, 229, 93 S. Ct. 1565,

36 L. Ed. 2d 208. A person may have a possessory inter-

est in the premises searched even though he has no title

to the premises. Mancusi v. DeForte, 392 U.S. 364, 367-68,

88 S. Ct. 2120, 20 L. Ed. 2d 1154; Jones v. United States,

362 U.S. 257, 265, 80 S. Ct. 725, 4 L. Ed. 2d 697; State v.

Darwin, 161 Conn. 413, 419, 288 A.2d 422. The defendant

had the burden of establishing the facts necessary to

demonstrate a basis for standing to attack the search and

seizure. See Combs v. United States, 408 U.S. 224, 227, 92

S. Ct. 2284, 33 L. Ed. 2d 308. It has been made clear that

capacity to claim the protection of the fourth amendment

depends not upon a property right in the premises searched

but upon whether the area was one in which there was a

reasonable expectation of freedom from governmental

4a

intrusion. Mancusi v. DeForte, supra, 368; Katz v. United

States, 389 U.S. 347, 352, 88 S. Ct. 507, 19 L. Ed. 2d 576. It

is evident that the defendant was not charged with an

offense that had as an essential element the possession of

seized evidence at the time of the search and seizure. See

Brown v. United States, supra. In addition, it appears from

the finding that the defendant was not at the apartment

when the police entered and the seizure occurred, and

the articles neither belonged to the defendant nor were

they in his custody at the time they were seized.

In this case, the critical issue on the defendant’s motion

to suppress as evidence the property seized is whether,

in light of all the circumstances, the defendant had a pos-

sessory interest in the searched premises at 365 Orchard

Street such that those premises constituted an area in

which the defendant had a “reasonable expectation of free-

dom from governmental intrusion.” Mancusi v. DeForte,

supra. In Mancusi, the defendant union official was found

to have standing to object to the seizure of certain union

records. The papers were taken from an office which was

used for union purposes and which the defendant shared

with several other union officials. It was stipulated that

he spent a considerable amount of time in that office, and

that he had custody of the papers at the moment of their

seizure. He was present in the office during the seizure,

and protested the taking of the papers. In marked con-

trast, it appears from the finding in the present case that

Warren Kimbro was the person who resided in, and paid

the rent for, the apartment at 365 Orchard Street; that

the defendant did not live in this apartment, had no pro-

prietary interest in it, and had only stayed overnight

there once; that the defendant had no possessory inter-

est in the articles seized; that the Black Panther group in

New Haven held meetings at Warren Kimbro's apart-

ment; and that the apartment was mainly a residence and

only sometimes used for office purposes by the Black

Panther group. In further contrast to the situation in

5a

Mancusi, in the present case there was no stipulation or

finding that the defendant had custody of the items at

the moment of seizure. The defendant's reliance on State

v. Darwin, 161 Conn. 413, 288 A.2d 422, is also misplaced.

In that case, we held (p. 420) that a husband had standing

to challenge a search and seizure involving his wife's

automobile because “[t]o hold. that a vehicle titularly

owned by a wife is not also owned by the husband for

purposes of search and seizure would seem to be an im-

proper stretching of technicalities.” Such a situation is

clearly distinguishable from the remote connection which

the defendant had with the premises in question here.

The conclusions of the trial court set forth in the finding

must stand if they are legally and logically consistent

with the subordinate facts found unless they involve the

application of some erroneous rule of law material to the

case. State v. Bowen, 167 Conn. 526, 531, 356 A.2d 162;

Consiglio v. Warden, 160 Conn. 151, 157, 276 A.2d 773. We

have examined the subordinate facts in the finding relat-

ing to this issue and are of the opinion both that they sup-

ort the conclusions reached and that those conclusions

involve no erroneous rule of law.

The defendant moved to suppress statements made by

him to officers in Salt Lake City, Utah, before voluntarily

returning to this state, and a statement made by him to

Sergeant Vincent J. DeRosa in New Haven on June 11,

1969. There was a full hearing on the motion to suppress

statements at the time of trial. A detailed recital of all

the facts contained in the voluminous finding would un-

duly lengthen this opinion, but we do include the follow-

ing summary of the facts found by the court: On June 6,

1969, the Salt Lake City office of the Federal Bureau of

Investigation (hereinafter referred to as the F.B.I.) had

received a call from the bureau's New York office that

two individuals for whom the New York office had fugi-

6a

tive warrants would possibly stop at the Western Union

office in Salt Lake City. The bureau had a fugitive warrant

for the defendant who arrived at the Western Union

office on June 6, 1969. The defendant was taken into cus-

tody and advised of his rights. At the F. B. I. office in Salt

Lake City, he was charged with unlawful fligt avoid

prosecution and was informed of the Connecticut war-

rant charging him with conspiracy, murder, kidnapping

and other crimes. The defendant signed a formal, written

statement of his rights, which statement included a waiver

of his right to an attorney. It was explained to the defend-

ant that he did not have to sign the form. Thereafter,

Lynn G. Twede, an agent for the F. B. I., interviewed the

defendant briefly before he was taken to be presented

before a United States commissioner. The defendant

indicated to Twede that he (the defendant) knew who had

killed Alex Rackley and that he could produce witnesses,

but he wanted assurances that he would not have to

testify.

Sergeant DeRosa first saw the defendant in Salt Lake

City on June 8, 1969. At that time the defendant signed a

form containing the “Miranda” warnings and indicated

that he understood them. At the time, and in the presence

of Sergeants DeRosa and Nicholas Pastore of the New

Haven police department, and two agents of the F.B.I.,

the defendant further indicated that he would be willing

to talk about the investigation of the case. It does not

appear what conversation subsequently took place on

June 8, 1969. On June 9, 1969, the defendant was at the

Salt Lake County courthouse with a lawyer. Sergeant

DeRosa had not known on the previous day that an attor-

ney had been appointed for the defendant. After confer-

ring with his attorney, the defendant waived extradition

and left Salt Lake City by airplane on June 10, 1969, with

Sergeants DeRosa and Pastore. It does not appear what

statements relative to the case under investigation were

made by the defendant during the course of the plane

Ta

trip. Sergeant DeRosa did show the defendant photo-

graphs of some of the people involved in the investiga-

tion and disclosed parts of statements which had been

taken from others and which might tend to incriminate

him. The defendant was arraigned in the Superior Court

at New Haven on June 11, 1969. The clerk of the court

informed the defendant of his rights but did not tell the

defendant that if he could not afford an attorney one would

be appointed for him. After the defendant was arraigned

on June 11, 1969, he was given two warnings of his con-

stitutional rights. The second warning forms a part of a

statement that was reduced to typewritten form.

The defendant waived extradition, entered this state

voluntarily, and was put to plea in this case. No question

was raised as to the defendant’s arrest in Salt Lake City

prior to voluntarily returning to this jurisdiction, and

none was ever made to the trial court. The defendant,

however, issued subpoenas to the F.B.I. seeking informa-

tion on the legality of his arrest when the motion for sup-

pression was being heard. Those subpoenas were quashed

on motion of the assistant United States attorney.

The court concluded that the defendant in all stages of

the proceeding on June 11, 1969, had his constitutional

rights explained to him and that he voluntarily, know-

ingly and intelligently waived those rights. The court

further concluded that the tape of the defendant's inter-

view on June 11, 1969, and the taped statement of such

interview were voluntarily given and should be admitted

as evidence, and that the motion to quash the subpoenas,

which was made by the United States, should be granted

on the basis of 5 U.S.C. §552 (b) (7).

In attacking the admissions of statements made to offi-

cers in Salt Lake City, the defendant contends that such

statements made by him while in custody should have

been suppressed because an attorney had been appointed

8a

to represent him by a United States commissioner. The

difficulties with the defendant’s argument are that he

does not particularize what statements are involved and

he misplaces his reliance on the case of Miranda v. Ari-

zona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The

Miranda case holds that no effective waiver of right to

counsel during interrogation can be recognized unless

specifically made after the person interrogated has been

apprised of his rights by being given the “Miranda”

warnings. Despite the defendant's assertion, it does not

hold that “[ojnce a criminal defendant is represented by

counsel, he cannot waive any of his so-called ‘Miranda’

rights without his attorney’s aid and advice.” See United

States v. Hall, 523 F.2d 665, 668 n.4 (2d Cir.); United States

v. Diggs, 497 F.2d 391, 393 (2d Cir.); Moore v. Wolff, 495

F.2d 35, 36-37 (8th Cir.);United States v. Cobbs, 481 F.2d

196, 199 (3d Cir.); United States v. Barone, 467 F.2d 247,

249 (2d Cir.). As stated in Moore v. Wolff, supra, 37: “If an

accused can voluntarily, knowingly, and intelligently

waive his right to counsel before one has been appointed,

there seems no compelling reason to hold that he may not

voluntarily, knowingly, and intelligently waive his right

to have counsel present at an interrogation after counsel

has been appointed. Of course, the Government will have

a heavy burden to show that the waiver was knowingly

and intelligently made, Miranda v. Arizona, [384 U.S. 436,

475, 86 S. Ct. 1602, 16 L. Ed. 2d 694] but we perceive no

compelling reason to adopt the per se rule advocated by

petitioner.” In similar circumstances, the court held that

“[slince there was no coercion or deception and [the de-

fendant] waived his right to counsel, the [F. B. I.] agents

were not required, before taking his voluntary statement,

to seek out the attorney who had been appointed.” United

States v. Hall, supra. This is not a case where the defend-

ant waived his right to counsel without full knowledge of

the crimes of which he was suspected. See United States

v. Diggs, supra, 393 n.3. There is no showing that the de-

fendant ever requested that an attorney be present or

9a

indicated a desire to remain silent. See State v. Moscone,

Conn. (38 Conn. L.J., No. 9, p. 7). In the present case

the facts establish beyond any doubt that the state’s bur-

den was discharged and that the defendant's waiver was

voluntarily, knowingly and intelligently made.

In attacking the admission of the statement made to

Sergeant DeRosa in New Haven on June 11, 1969, the

defendant contends that it was tainted by a possible ille-

gal arrest of the defendant by the F.B.I. in Salt Lake City.

The defendant suspected that his arrest might have been

aided by the use of illegal electronic surveillance. The

defendant argues that in the case of an illegal arrest the

statement given by him on June 11, 1969, was the “fruit

of the poisonous tree” and should have been suppressed.

See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.

Ct. 407, 9 L. Ed. 2d 441. In attempting to pursue his suspi-

cion that electronic eavesdropping had been involved in his

arrest, the defendant issued two subpoenas directed to

several F.B.I. agents, seeking to compel them to appear

and bring certain electronic surveillance documents. The

first subpoena sought information as to whether the F.B.I.

had received information regarding the defendant's

presence in Salt Lake City through electronic surveil-

lance or wiretapping of the Jersey City Black Panther

office or from an informant or from disclosure by Western

Union. The second subpoena had to do with wiretapping

devices, if any, of Warren Kimbro's apartment at 365

Orchard Street, New Haven, although the defendant did

not claim that there were any wiretapping devices there.

The court granted the motion to quash of the assistant

United States attorney on the basis of 5 U.S.C. §552 (b)

(7). At the time of trial, 5 U.S.C. §552 established the

guidelines for public access to information held by a fed-

eral agency, while 5 U.S.C. §552 (b) (7) exempted from the

general disclosure requirements “investigatory files com-

piled for law enforcement purposes except to the extent

available by law to a party other than an agency.” In his

10a

brief, the defendant apparently seeks to come within the

exception of 5 U.S.C. §552 (b) (7) for disclosure of matter

“available by law to a party” by his discussion of 18 U.S.C.

§2518 (8) (d), which provides for notice of electronic sur-

veillance to “persons named in the [wiretap] order or the

application, and such other parties to intercepted com-

munications as the judge may determine The de-

fendant did not actually claim that there were any wire-

tapping devices at Warren Kimbro’s apartment, and the

rest of his allegations are equally speculative. Federal

wiretapping legislation at the time of trial provided that

an “aggrieved person” could move to suppress “the con-

tents of any intercepted wire or oral communication, or

evidence derived therefrom” on the ground of its unlaw-

ful interception; 18 U.S.C. §2518 (10) (a); and defined such

an aggrieved person as one “who was a party to any inter-

cepted wire or oral communication or a person against

whom the interception was directed.” 18 U.S.C. §2510

(11). In assessing claims of suspected illegal electronic

surveillance, courts have looked for a relatively precise

showing of the facts which reasonably have led a person

to believe he has been subjected to undisclosed elec-

tronic surveillance, and have disapproved of speculative

claims which lack sufficient precision and substantiation.

See, e.g., United States v. See, 505 F.2d 845, 856 (5th Cir.),

affidavits vague and conclusory to the point of being a

fishing expedition; United States v. Alter, 482 F.2d 1016,

1026 (9th Cir.); Cohen v. United States, 378 F.2d 751, 761

(9th Cir.); People v. Cruz, 34 N.Y. 2d 362, 314 N.E. 2d 39.

The defendant's contention that he would be a party en-

titled by law to access to the F B.I.’s investigative mate-

rial and wiretap data because 18 U.S.C. §2518 (8) (d) “man-

dates eventual wiretap notice” appears rather tenuous!

See State v. DeMartin, Conn. {38 Conn. L.J., No. 10, pp. 1, 4),

which contains a detailed history and discussion of present federal

and state statutes relating to electronic surveillance.

lla

The defendant also argues that he was denied his sixth

amendment right to have compulsory process for obtain-

ing witnesses in his favor by the fact that F. B. I. agent

Twede testified for the state while the defendant was

prevented, by the quashing of his subpoenas, from com-

pelling certain other F.B.I. agents to appear and bring

electronic surveillance documents. The defendant relies

entirely on Washington v. Texas, 388 U.S. 14, 87 S. Ct.

1920, 18 L. Ed. 2d 1019, for his contention that the sixth

amendment mandated that he have access to the alleged

wiretap information under these circumstances. In Wash-

ington v. Texas, supra, the United States Supreme Court

(p. 22) found that the federal constitution was violated by

two Texas statutes which allowed a participant in a crime

to testify for the prosecution but not for a defendant co-

participant and thereby established “arbitrary rules that

prevent whole categories of defense witnesses from tes-

tifying on the basis of a priori categories that presume

them unworthy of “belief.” Such a situation is certainly

distinguishable from the facts of the present case. The

defendant was nowhere deliberately prevented from pre-

senting his version of the facts. There was no statute or

rule making the testimony of F.B.I. agents available to,

and competent evidence for, the state but not for the

defendant. The quashing of the defendant's subpoenas

had to do with the conjectural nature of his claims rather

than with any discriminatory and arbitrary statutory

scheme.

The issue of whether the court erred in quashing the

subpoenas would not be dispositive of whether the de-

fendant's statement to Sergeant DeRosa was admissible.

This is because even were we to assume” the illegality of

2 This assumption, however, appears remote in light of the recent

decision in United States v. Donovan, US. 20 Crim. Law

Rep. (Jan. 18, 1977) 3043.

12a

the defendant's arrest in Salt Lake City this would not

end our inquiry under the “poisonous tree” doctrine of

Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct.

407, 9 L. Ed. 2d 441. In his brief the defendant has relied

heavily on the wiretap question and his inability to probe

the legality of his original arrest. Under the facts of this

case, however, the central and dispositive issue is, rather,

the voluntariness of the defendant's statement and wheth-

er such voluntariness is sufficient to sever any causal

relationship between any prior illegality and the state-

ment. “We need not hold that all evidence is ‘fruit of the

poisonous tree’ simply because it would not have come to

light but for the illegal actions of the police. Rather, the

more apt question in such a case is ‘whether, granting

establishment of the primary illegality, the evidence...

has been come at by exploitation of that illegality or in-

stead by means sufficiently distinguishable to be purged

of the primary taint.’ [Citation omitted.J’ Wong Sun v.

United States, supra. The question of whether a state-

ment is sufficiently voluntary under Wong Sun to be

deemed independent of any prior illegality must be re-

solved upon the facts of each case. No single fact is dis-

positive, and the burden of showing the admissibility of

the statement rests upon the state. Brown v. Illinois, 422

U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416. The

Miranda warnings are an important factor in determining

the voluntariness of the statement, and other relevant

factors are the temporal proximity of the arrest and the

statement, the presence of intervening circumstances

and, particularly, the purpose and flagrancy of the offi-

cial misconduct. Ibid. In the present case, the claimed

illegality is that an illegal search (a wiretap) occurred in

which information was obtained as to the location of the

defendant for whom the authorities already had a valid

arrest warrant. Days and not two hours as in Brown v.

Illinois, supra, separated the initial arrest on June 6,

1969, Sergeant DeRosa's first meeting with the defend-

ant on June 8, 1969, and the defendant’s statement to

13a

DeRosa on June 11, 1969, which was the object of the

motion to suppress. The defendant had repeatedly been

given his Miranda warnings and had indicated that he

understood them and still wished to waive his rights. It

appears from the finding that it was the defendant who

sought to initiate a bargaining process by indicating that

he had information regarding Rackley’s murder but wanted

assurances that he would not have to testify. See United

States v. Mullens, 536 F.2d 997, 1000 (2d Cir.). The defend-

ant was fully aware of the charges facing him, and there

is no intimation that the defendant did not fully under-

stand the consequences of his actions. Ibid. As the United

States Supreme Court has recently emphasized, in find-

ing that a defendant's consent to a police search of his

automobile was voluntary, “[t]here is no indication in this

record that [the defendant] was a newcomer to the law,

mentally deficient, or unable in the face of custodial arrest

to exercise a free choice.” United States v. Watson, 423

U.S. 411, 424-25, 96 S. Ct. 820, 46 L. Ed. 2d 598. There is

no indication in the finding that any promises were made

or that there were “more subtle forms of coercion that

might flaw his judgment.” Id., 424. The fact of custody

alone “has never been enough in itself to demonstrate a

coerced confession or consent to search.” Ibid. Although

United States v. Watson, supra, involved a legal arrest

and, therefore, a lesser burden of proof on the state be-

cause there was no taint of illegality to purge; see State v.

Traub, 151 Conn. 246, 249, 196 A.2d 755, cert. denied, 377

U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2d 503; the same factors

are relevant in determining the voluntariness of the

defendant's statement in the present case. Above all,

there was no suggestion whatsoever in this case that

“(tlhe illegality... had a quality of purposefulness. The

impropriety of the arrest was obvious.... The manner

in which [the] arrest was effected gives the appearance of

having been calculated to cause surprise, fright, and con-

fusion.” Brown v. Illinois, supra, 605. Nor was any police

overreaching or overt act or threat of force proved or

14a

claimed. See United States v. Watson, supra, 424; United

States v. Mullens, supra. In short, there was ample evi-

dence on which the court could base its conclusion that

the defendant’s statement was completely voluntary,

“an act of free will unaffected by the initial illegality.”

Brown v. Illinois, supra; see State v. Traub, supra. The

court therefore did not err in admitting the defendant's

statement to Sergeant DeRosa.

Prior to the trial the state moved to sever the trial of

the defendant from that of others alleged to be involved

in the death of Alex Rackley. Over the defendant's oppo-

sition the court granted the state’s motion. Subsequently,

the defendant moved that he be tried after the other de-

fendants or, in the alternative, together with the others,

and, finally, that immunity be granted to certain wit-

nesses. Those motions were denied. The defendant as-

signs as error the action of the trial court on those motions.

The defendant argues (1) that he had a right to be tried

together with the others, (2) that he could waive the right

to be tried separately, and (3) that the court should have

granted his request for immunity of the witnesses facing

charges arising out of the same subject matter.

Ordinarily it is the defendant who moves for a sepa-

rate trial and when he does so the determination of the

motion is within the discretion of the court. State v. Holup,

167 Conn. 240, 244, 355 A.2d 119; State v. Klein, 97 Conn.

321, 324, 116 A.596. “[Cjases arise where the defenses of

the different parties are antagonistic, or where evidence

will be introduced against one which will not be admis-

sible against others. Where from the nature of the case it

appears that a joint trial will probably be prejudicial to

the rights of one or more of the parties, a separate trial

should be granted when properly requested.” State v.

Brauneis, 84 Conn. 222, 226, 79 A. 70. A motion for a sepa-

15a

rate trial can be determined only on the basis of whether

at the time “it appears that a joint trial will probably

result in substantial injustice.” State v. Castelli, 92 Conn.

58, 63, 101 A.476; State v. Holup, supra, 245. A similar

test should be applied when the prosecutor makes the

motion for a separate trial. See ABA, Standards Relating

to Joinder and Severance (1968) §2.3 (b). At the time of

trial our rules of practice permitted joinder or defend-

ants, subject to the power of the court to order separate

trials. Practice Book 8532.3

The state based its motion on (1) the fact that it had a

statement from the defendant and that the statement

could not be used in a trial involving several defendants

together because of the rule enunciated in Bruton v. United

States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476; (2) the

defendant had been informed against individually by

indictment and substituted information; and (3) the de-

fendant was not on the Orchard Street premises at the

time that the arrests and searches incident to said arrests

were made there and that, therefore, he would have a dif-

ferent status from the others insofar as standing regard-

ing a motion to suppress was concerned.

The Bruton case holds that the introduction into evi-

dence in a joint trial of a confession implicating the de-

fendant and made by a codefendant who does not testify

is improper and cannot be cured by jury instructions. See

State v. Hunt, 154 Conn. 517, 227 A.2d 69, vacated and

remanded, 392 U.S. 304, 88 S. Ct. 2063, 20 L. Ed. 2d 1110,

for further consideration in the light of Bruton v. United

States, supra, and Roberts v. Russell, 392 U.S. 293, 88 S.

3 Our new rules of criminal procedure (effective October 1, 1976) pro-

vide that each defendant shall be charged in a separate indictment

or information; Practice Book §2036; and that upon order two or

more indictments or informations against different defendants

may be tried together. Practice Book §2240.

16a

Ct. 1921, 20 L. Ed. 2d 1100. The defendant argues that he

did testify at the trial and at all times intended to do so.

The short answer to this argument is that at the time the

motion was heard there was no sure way of knowing

whether the defendant would take the witness stand and

expose himself to cross-examination. Under the circum-

stances the court did not abuse its discretion in granting

a separate trial on the ground that the defendant had

made a confession incriminating other codefendants.

State v. Klein, supra, 324; see State v. Castelli, supra. It is

unnecessary to consider the further grounds for a sepa-

rate trial except to note that they had a tendency to bol-

ster the state's first ground for a separate trial.

The defendant asserts that the right to be tried sepa-

rately from one’s codefendants is a right which belongs

to an accused and can be waived. Of course there is no

constitutional or absolute right to a separate trial. 5

Wharton, Criminal Law and Procedure (Anderson) §§1943,

1944; see annot., 59 A.L.R. 2d 841. Assuming the ability

of an accused in a proper case to waive a right to a sepa-

rate trial, that right does not necessarily carry with it

the right to insist upon the opposite of that right, in this

case a joint trial. See Singer v. United States, 380 U.S. 24,

34-35, 85 S. Ct. 783, 13 L. Ed. 2d 630.

The defendant further contends that once the court

had granted the motion for a separate trial, it should

have granted the defendant's requests for immunity of

witnesses facing charges arising out of the same subject

matter. We have recently considered the issue of immu-

nity and have held that there is no authority for a court

in this state to grant immunity to an accused’s witnesses,

and General Statutes §54-47a does not apply. State v.

Simms, 170 Conn. 206, 210-11, 365 A.2d 821. As in Simms,

the defendant in this case has failed to cite any case that

supports his claim. We find no merit to the defendant's

claim.

17a

IV

The defendant next claims that the court erred in ex-

cluding the testimony of three witnesses regarding the

character, mental stability, prior violent and erratic be-

havior, and reputation for truthfulness of George Sams.

Sams was an accomplice in the Alex Rackley murder who

testified as a state’s witness against the defendant at

trial after having pleaded guilty to second degree mur-

der prior to trial. The defendant claims alternatively that

the evidence had relevance either on the question of Sams’

credibility or on the defense of his own state of mind based

on the alleged duress caused by Sams. The testimony

proffered by the defendart’s witnesses concerned how

others perceived Sams, with no attempt to show that the

defendant personally was aware of Sams’ alleged reputa-

tion and prior acts of violence at the time the defendant

himself was participating in the murder conspiracy cul-

minating in the death of Rackley. Thus, such testimony

would have been irrelevant to the issue of the defend-

ant’s own alleged fear of Sams. The defendant testified at

trial that he only knew “a little” about Sams, which was

that Sams had been expelled from the Black Panther

Party because of a stabbing incident. The defense was in

fact allowed to present testimony regarding Sams’ erratic

behavior, his reputation for mental instability, his vio-

lence and his reputation for veracity. In addition, a psy-

chiatrist appointed to determine Sams’ competency to

testify was used as a defense witness on the question of

Sams’ mental stability and propensity for violence dur-

ing the events leading up to Rackley’s murder. The court

did not err in excluding the testimony of the other wit-

nesses concerning their knowledge of Sams’ reputation

for mental instability and violent behavior and his previ-

ous acts of violence. The trial court has broad discretion

in determining the relevancy of evidence. State v. Mullings,

166 Conn. 268, 279, 348 A.2d 645; State v. Lombardo, 163

Conn. 241, 243, 304 A.2d 36; Johnson v. Newell, 160 Conn.

2 — . . %

18a

269, 277, 278 A. 2d 776. There was no abuse of this discre-

tion on the facts presented here. It was error for the

court to refuse to permit the three witnesses to testify to

Sams’ reputation for veracity. See Creer v. Active Auto

Exchange, Inc., 99 Conn. 266, 278, 121 A. 888; Holden and

Daly, Connecticut Evidence §125 b (3); McCormick, Evi-

dence (2d Ed.) §44. The court realized its error and at-

tempted to cure it by admitting the testimony of a fourth

witness as to Sams’ reputation for truthfulness in the

community, and the witness testified that Sams had no

reputation for truthfulness and had a reputation for being

a “crazy liar.” Sams himself testified that he was some-

times called “Crazy George” or “Madman George.” “In

order to constitute reversible error...the rulings must

have been both wrong and harmful.” State v. Tropiano,

158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S.

949, 90 S. Ct. 1866, 26 L. Ed. 2d 288. Under the circum-

stances, the error in excluding the testimony of the other

three witnesses was harmless.

V

Prior to trial the defendant moved to dismiss the indiet-

ment on the ground that the grand jury was unconstitu-

tionally selected. Subsequently the defendant challenged

the jury array and moved to dismiss the jury panel on

the ground that it was unconstitutionally and unlawfully

selected. Both motions were denied. The defendant, con-

ceding in his brief that recent decisions of this court are

controlling on both motions and will result in affirmance

of the trial court’s rulings, does not further brief those

motions. See State v. Brown, 169 Conn. 692, 696, 364 A.2d

186 (jury array); State v. Hart, 169 Conn. 428, 433, 363

A.2d 80 (jury array); State v. Townsend, 167 Conn. 539,

545, 356 A.2d 125 (jury array); State v. Cobbs, 164 Conn.

402, 406-15, 324 A.2d 234 (grand jury), cert. denied, 414

U.S. 976, 94 S. Ct. 77, 38 L. Ed. 2d 112. We agree that

those recent cases are sufficient authority to support the

19a

action of the court denying the defendant’s motions chal-

lenging the selection of the grand jury and the jury array.

VI

Finally the defendant assigns error in the denial of his

motion to dismiss on the ground that the state's attor-

neys are appointed by the judges of the Superior Court

and that such relationship results in a violation of the

constitutional doctrine of separation of powers as well as

in a denial of due process of law. In his brief, the defend-

ant states that he does not brief this assignment of error

in view of the court’s holding in State v. Moynahan, 164

Conn. 560, 567, 325 A.2d 199, cert. denied, 414 U.S. 976,

94 S. Ct. 291, 38 L. Ed. 2d 219. There is no merit to the

defendant's claim relating to the denial of his motion to

dismiss because of the method of appointing state’s attor-

neys. State v. Moynahan, supra.

There is no error.

In this opinion the other judges concurred.

—̃—.᷑.ʃ—— . — — .

20a

SUPREME COURT

OF THE STATE OF CONNECTICUT

New Haven County, December Term, 1976

7836

State of Connecticut v. Lonnie McLucas

Criminal Superior Court No. 15,672

September 30, 1970

Defendant-Appellant’s Motion to Reargue

Pursuant to Section 702, ef. seg. of the Connecticut

Practice Book, defendant-appellant in the above-captioned

case moves this Honorable Court to hear reargument in

this case. Reargument should be allowed in this case to

allow the defense to demonstrate the prejudice that re-

sulted from the trial court’s exclusion of three witnesses

whom the defense called to testify to George Sams’ repu-

tation for untruthfulness and, furthermore, to show that

the prejudice inflicted by excluding this testimony could

not be cured by admitting the testimony of a subsequently

called witness who did testify regarding George Sams;

State v. McLucas, 38 Conn. L.J., No. 37, P. 1, 8 (March 15,

1977).

THE DEFENDANT-APPELLANT

21a

STATE OF CONNECTICUT

SUPREME COURT

New Haven, Conn.

April 14, 1977

Please take notice that the Supreme Court has decided

the following:

#7836 (15672) State of Connecticut vs. Lonnie McLucas

“April 5, 1977. The defendant’s motion to reargue is

denied. By the Court, House, C. J.”

Nicholas J. Cimmino, Clerk

STATUTES INVOLVED

Amendment IV, Constitution of the United States:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Amendment V, Constitution of the United States:

No person shall be. compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property without due process of law... .

Amendment VI, Constitution of the United States:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

22a

jury of the State and district wherein the crime shall

have been committed, which district shall have been pre-

viously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have the Assist-

ance of Counsel for his defense.

Amendment XIV, Sec. 1, Constitution of the United

States:

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citi-

zens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any per-

son of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Section 54-47a, Connecticut General Statutes:

Whenever in the judgment of a state’s attorney or the

chief prosecuting attorney of the circuit court the testi-

mony of any witness, or the production of books, papers

or other evidence of any witness, in any criminal proceed-

ing involving narcotics, gambling or felonious crimes of

violence, before a court or grand jury of this state, is nec-

essary to the public interest, the state’s attorney, or the

chief prosecuting attorney of the circuit court, may, with

notice to the witness, after the witness has claimed his

privilege against self-incrimination, make application to

the superior or circuit court for an order directing the

witness to testify or produce evidence subject to the pro-

visions of this section. Upon the issuance of such order

such witness shall not be excused from testifying or from

producing books, papers or other evidence in such case

23a

or proceeding on the ground that the testimony or evi-

dence required of him may tend to incriminate him or

subject him to a penalty or forfeiture. No such witness

shall be prosecuted or subjected to any penalty or for-

feiture for or on account of any transaction, matter or

thing concerning which he is compelled to testify or pro-

duce evidence, and no testimony or evidence so compelled,

and no evidence discovered as a result of or otherwise de-

rived from testimony or evidence so compelled, shall be

used as evidence against him in any proceeding, except

that no witness shall be immune from prosecution for

perjury or contempt committed while giving such testi-

mony or producing such evidence. Whenever evidence is

objected to as inadmissible because it was discovered as

a result of or otherwise derived from compelled testi-

mony or evidence, the burden shall be upon the person

offering the challenged evidence to establish a source in-

dependent of the compelled testimony or evidence. (P.A.

631, 1969).

Title 5 U.S.C. See. 552 (b) (7):

(b) This section [allowing access to government infor-

mation] does not apply to matters that are:

.. .(7) investigating files compiled for law enforce-

ment purposes except to the extent available by law toa

party other than an agency.

Title 18 U.S.C. See. 2515:

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communica-

tion and no evidence derived therefrom may be received

in evidence in any trial, hearing, or other proceeding in

or before any court, grand jury, department, officer,

agency, regulatory body, legislative committee, or other

authority of the United States, a State, or a political sub-

division thereof if the disclosure of that information

would be in violation of this chapter.

24a

Title 18 U.S.C. Sec. 2518:

...(d) Within a reasonable time but not later than

ninety days after the filing of an application for an order

of approval under section 2518 (7) (b) which is denied or

the termination of the period of an order or extensions

thereof, the issuing or denying judge shall cause to be

served, on the persons named in the order or the applica-

tion, and such other parties to intercepted communica-

tions as the judge may determine in his discretion that is

in the interest of justice, an inventory which shall include

notice of —

(1) the fact of the entry of the order or the appli-

cation;

(2) the date of the entry and the period of author-

ized, approved or disapproved interception, or the

denial of the application; and

(3) the fact that during the period wire or oral

communications were or were not intercepted.

The judge, upon the filing of a motion, may in his discre-

tion make available to such person or his counsel for in-

spection such portions of the intercepted communica-

tions, applications and orders as the judge determines to

be in the interest of justice. On an ex parte showing of

good cause to a judge of competent jurisdiction the serv-

ing of the inventory required by this subsection may be

postponed.

(9) The contents of any intercepted wire or oral com-

munication or evidence derived therefrom shall not be

received in evidence or otherwise disclosed in any trial,

hearing, or other proceeding in a Federal or State court

unless each party, not less than ten days before the trial,

hearing, or proceeding, has been furnished with a copy of

the court order, and accompanying application, under

which the interception was authorized or approved. This

25a

ten-day period may be waived by the judge if he finds

that it was not possible to furnish the party with the above

information ten days before the trial, hearing, or pro-

ceeding and that the party will not be prejudiced by the

delay in receiving such information.

(10) (a) Any aggrieved person in any trial, hearing, or

proceeding in or before any court, department, officer,

agency, regulatory body, or other authority of the United

States, a State, or a political subdivision thereof, may

move to suppress the contents of any intercepted wire or

oral communication, or evidence derived therefrom, on

the grounds that —

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or

proceeding unless there was no opportunity to make

such motion or the person was not aware of the grounds

of the motion. If the motion is granted, the contents of

the intercepted wire or oral communication, or evidence

derived therefrom, shall be treated as having been ob-

tained in violation of this chapter. The judge, upon the

filing of such motion by the aggrieved person, may in his

discretion make available to the aggrieved person or his

counsel for inspection such portions of the intercepted

communication or evidence derived therefrom as the

judge determines to be in the interests of justice.